1

By its appeal, Viasat Broadcasting UK Ltd (‘Viasat’) seeks to have set aside the judgment of the General Court of the European Union of 24 September 2015, Viasat Broadcasting UK v Commission (T‑125/12, EU:T:2015:687) (‘the judgment under appeal’), by which that court dismissed its action directed against Commission Decision 2011/839/EU of 20 April 2011 on the measures implemented by Denmark (C 2/03) for TV2/Danmark (OJ 2011 L 340, p. 1) (‘the contested decision’), by which the European Commission, while recognising that certain measures adopted by the Kingdom of Denmark in favour of TV2/Danmark (‘TV2’) had the character of State aid, decided that those measures were to be regarded as compatible with the internal market on the basis of Article 106(2) TFEU.

2

The General Court set out the background to the dispute in paragraphs 1 to 17 of the judgment under appeal in the following terms:

3

By application lodged at the Registry of the General Court on 14 March 2012, Viasat sought annulment in part of the contested decision.

4

Viasat claimed that the State aid granted to TV2 was incompatible with the internal market, raising two pleas in this connection. The first plea alleged an error of law committed by the Commission which, in assessing the compatibility of the measures concerned with the internal market under Article 106(2) TFEU, did not take into account the second and fourth Altmark conditions. The second plea alleged a failure by the Commission to fulfil its duty to state reasons in so far as that institution, without explaining the reasons for its decision, found that Article 106(2) TFEU applied in the present case, although the second and fourth Altmark conditions were not met.

5

By the judgment under appeal, the General Court declared that it was unnecessary to adjudicate on the action, in so far as that action sought the annulment of the contested decision in that the Commission had found that the advertising revenue from 1995 and 1996 paid to TV2 by the TV2 Fund amounted to State aid, and dismissed the action as to the remainder.

6

By its judgment of 24 September 2015, TV2/Danmark v Commission (T‑674/11, EU:T:2015:684), the General Court, in an action brought by TV2, annulled the contested decision in so far as it had characterised as State Aid the advertising revenue received by TV2 for the years 1995 and 1996.

7

Viasat claims that the Court should:

8

The Commission contends that the Court should:

9

The Kingdom of Denmark contends that the Court should dismiss the appeal.

10

TV2 A/S contends that the Court should:

11

Following the delivery of the Advocate General’s Opinion, Viasat, by letter of 3 January 2017, requested the Court to reopen the oral part of the procedure. In support of its request, Viasat submits that the Advocate General’s Opinion distorts some of its arguments and raises separate arguments which were not debated between the parties.

12

It should be borne in mind that, according to Article 83 of the Rules of Procedure of the Court of Justice, that court may, at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.

13

However, the Statute and those Rules make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).

14

In that regard, it follows from the second paragraph of Article 252 TFEU that it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which require his involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions examined in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraphs 60 and 61 and the case-law cited).

15

The Court therefore considers, having heard the Advocate General, that it has before it all the necessary information to give judgment and that the information has been the subject of debate between the parties.

16

In the light of the foregoing, the Court considers that there is no need to reopen the oral part of the procedure.

17

By its first ground of appeal, Viasat claims that the General Court erred in law in finding that the Commission, in its assessment of the proportionality of the measures concerned in the light of the requirements set out in Article 106(2) TFEU, in particular those providing that, first, the application of the rules of the Treaties must obstruct the performance of the tasks assigned and, secondly, the performance of those tasks must not affect the development of trade as would be contrary to the interests of the European Union, was not required to take into consideration the fact that those measures did not meet the second and fourth Altmark conditions. According to those conditions, the parameters on the basis of which the compensation for the performance of the public service is calculated must be established in advance in an objective and transparent manner, and that compensation must be determined on the basis of an analysis of the costs which a typical and well run undertaking would have incurred in performing the public service tasks concerned.

18

Viasat claims that it is apparent from the wording of Article 106(2) TFEU that the requirement that the application of the rules in the Treaties, in particular the competition rules, must obstruct the performance of the tasks assigned must be interpreted so as to refer to the other provisions of the Treaty. Thus, in an assessment of the compatibility of State aid in the light of Article 106(2) TFEU, those other provisions must be examined beforehand. Therefore, in the present case it should, according to Viasat, have been ascertained in this connection whether or not the application of any of the Altmark conditions obstructed the performance of the public service tasks assigned to TV2. Had that examination taken place, the Commission would have concluded that the adoption, in favour of TV2, of measures meeting the second and fourth Altmark conditions would not have obstructed the performance of that task.

19

Consequently, in order to ensure compliance with the requirements that the performance of the tasks at issue must be obstructed and the development of trade cannot be affected to such an extent as would be contrary to the interests of the Union, the Commission should have requested the Kingdom of Denmark to prove that complying with the second and fourth Altmark conditions would have prevented the performance of the tasks of general economic interest assigned to TV2.

20

The Commission, the Kingdom of Denmark and TV2 A/S contend that the first ground of appeal is unfounded.

21

By its first ground of appeal, Viasat claims that the General Court erred in law in finding that the Commission was not required, in its assessment under Article 106(2) TFEU, to take the second and fourth Altmark conditions into consideration in order to ascertain whether compliance with those conditions would have obstructed the performance by TV2 of the tasks assigned to it.

22

In this connection it must be recalled that, for a national measure to be categorised as State aid within the meaning of Article 107(1) TFEU, there must, first, be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the recipient and, fourth, it must distort or threaten to distort competition (see, to that effect, judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 39 and the case-law cited).

23

Since those conditions are cumulative, a State measure cannot be characterised as State aid if one of them is not satisfied. By contrast, if all those conditions are met, that measure constitutes State aid and, accordingly, unless it is covered by a derogation provided for by the Treaties, is incompatible with the internal market.

24

So far as concerns the third criterion for characterising a measure as State aid, it is settled case-law that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (see judgment of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 34).

25

However, the Court has stated that, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 107(1) TFEU (see judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 87).

26

In accordance with paragraphs 88 to 93 of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), in order for such a measure not to be characterised as State aid a number of conditions must be met. First, the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner. Third, the compensation must not exceed what is necessary to cover all or part of the costs incurred in discharging the public service obligations. Fourth, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations.

27

If the conditions referred to in the previous paragraph were not met, the State measure at issue would be deemed to confer a selective advantage on the recipient undertaking and if, moreover, the other criteria set out in Article 107(1) TFEU were met, that measure would constitute aid in principle incompatible with the internal market.

28

Article 106(2) TFEU provides that undertakings entrusted with the operation of services of general economic interest are to be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them and that the development of trade must not be affected to such an extent as would be contrary to the interests of the Union.

29

As is provided by case-law, the wording of Article 106(2) TFEU itself shows that exemptions to the Treaty rules are permitted provided that they are necessary for performance of the particular tasks assigned to an undertaking entrusted with the operation of a service of general economic interest (see, to that effect, judgments of 23 October 1997, Commission v France, C‑159/94, EU:C:1997:501, paragraph 54 and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, paragraph 106).

30

In that regard, it is clear from the Court’s case-law that it is not necessary that the financial balance or economic viability of the undertaking entrusted with the operation of a service of general economic interest should be threatened. It is sufficient that, in the absence of the rights at issue, it would not be possible for the undertaking to perform the particular tasks entrusted to it, or that maintenance of those rights is necessary to enable the holder of them to perform tasks of general economic interest which have been assigned to it under economically acceptable conditions (judgment of 15 November 2007, International Mail Spain, C‑162/06, EU:C:2007:681, paragraph 35 and the case-law cited).

31

In allowing derogations to be made from the general rules of the Treaty in certain circumstances, Article 106(2) TFEU seeks to reconcile the Member States’ interest in using certain undertakings, in particular in the public sector, as an instrument of economic or fiscal policy with the Union’s interest in ensuring compliance with the rules on competition and the preservation of the unity of the common market (see, to that effect, judgment of 23 October 1997, Commission v France, C‑159/94, EU:C:1997:501, paragraph 55).

32

As set out in paragraph 21 above, Viasat submits that the Commission was required to examine, in its assessment under Article 106(2) TFEU, whether meeting the second and the fourth Altmark conditions would have obstructed the performance by TV2 of the tasks assigned to it.

33

It must be pointed out in this connection that in order to assess a measure under Article 106(2) TFEU, the Commission is not required, contrary to what is claimed by the appellant, to examine whether the conditions laid down by the case-law in Altmark, in particular the second and fourth of those conditions, are met.

34

As the General Court indeed held in paragraph 63 of the judgment under appeal, verification of the conditions laid down in the Altmark case-law occurs upstream, that is to say in the examination of the issue of whether the measures at issue must be characterised as State aid. That issue must be resolved before the one which consists in examining, where necessary, if incompatible aid is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU.

35

By contrast, the conditions laid down in the Altmark case-law are no longer to be applied where the Commission, having found that a measure must be characterised as aid, in particular in so far as the recipient undertaking is unable to pass the test of comparison with a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public-service requirements, examines whether that aid can be justified under Article 106(2) TFEU.

36

That latter provision, which is supplemented by the Protocol (No. 26) on Services of General Interest (OJ 2010 C 83, p. 308) and, as regards the field at issue in the present case, by the Protocol (No. 29) on the System of Public Broadcasting in the Member States (OJ 2010 C 83, p. 312), cannot be interpreted in isolation having regard merely to its wording without also taking into account the additional information in those protocols.

37

The finding in paragraph 35 of the present judgment is supported, as the Advocate General observed in point 43 of his Opinion, by the wording of Protocol No. 29, which states that ‘the provisions of the Treaties shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting and in so far as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State, and in so far as such funding does not affect trading conditions and competition in the Union to an extent which would be contrary to the common interest, while the realisation of the remit of that public service shall be taken into account.’

38

Having regard to the foregoing considerations, the General Court therefore did not err in law when it held in the judgment under appeal that Article 106(2) TFEU does not require the Commission to take into consideration the second and fourth Altmark conditions in order to decide whether State aid is compatible with the internal market under that provision.

39

The first ground of appeal must therefore be rejected as unfounded.

40

By its second ground of appeal, Viasat takes issue with paragraphs 103 and 104 of the judgment under appeal on the ground that the General Court erred in law by rejecting its plea for annulment based on the Commission’s infringement in the contested decision of its obligation to state reasons under Article 296 TFEU.

41

Viasat also alleges that the General Court failed to reply to the pleas raised in the application at first instance.

42

The Commission contends that the second ground of appeal is in part inadmissible and, in any event, unfounded.

43

It is settled case-law that the statement of reasons required under Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147 and the case-law cited).

44

It must be observed in this connection that, in paragraph 103 of the judgment under appeal, the General Court rejected the plea alleging a failure to state reasons in the contested decision by stating that ‘the fact that the contested decision does not mention the role of the second and fourth Altmark conditions in the assessment of the compatibility of the measures concerned with the internal market is not attributable to an error of reasoning on the part of the Commission or to a failure to state reasons vitiating the contested decision, but rather to the fact that that decision applies a different analytical framework from that which favours [Viasat]’.

45

As Viasat has conceded, the contested decision would only be vitiated by a failure to state reasons if the Commission had been required to apply the analytical framework which, according to Viasat, results from Article 106(2) TFEU.

46

However, it follows from paragraph 37 above that Article 106(2) TFEU did not require the Commission to take into consideration the second and fourth Altmark conditions in order to decide whether State aid is compatible with the internal market under that provision. Accordingly, the General Court did not err in law in holding that sufficient reasons were stated for the contested decision.

47

Moreover, as the Advocate General observed in point 58 of his Opinion, the complaint alleging a failure to respond to the pleas raised in the application at first instance is insufficiently developed for the other parties to the appeal to respond to or for the Court to rule on. Consequently, it is inadmissible.

48

Accordingly, the second ground of appeal must be rejected as in part inadmissible and in part unfounded.

49

It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety.

50

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

51

Since the Commission and TV2 A/S have applied for costs and Viasat has been unsuccessful, the latter must be ordered to pay their costs.

52

Pursuant to Article 140(1) of the Rules of Procedure, also applicable to appeal proceedings by virtue of Article 184(1) of those Rules, the Member States and institutions which intervene in the proceedings are to bear their own costs.

53

The Kingdom of Denmark, as an intervener before the General Court, is to bear its own costs.

On those grounds, the Court (First Chamber) hereby: